It has been a long time coming – Caster Semenya ‘elated’ over ECHR ruling
The 32-year-old South African – who won Olympic gold in 2012 and 2016 – was legally identified as female at birth, but has a condition which means her body naturally produces higher levels of testosterone than women without the condition.
Semenya has been unable to compete at her favoured distance since 2019, following the introduction of limits on testosterone levels for female athletes by World Athletics which would have forced her to use medication.
Earlier legal challenges at the Court of Arbitration for Sport and the Swiss Federal Court had been rejected.
However, on Tuesday, the ECHR found Switzerland had not afforded Semenya “sufficient institutional and procedural safeguards” to allow her to have her complaints examined effectively.
The court said because of the “high stakes” involved for Semenya, it “should have led to a thorough institutional and procedural review”.
Semenya had been unable to obtain such a review, therefore the ECHR was “unable to determine whether the DSD (differences in sex development) regulations, as applied in the applicant’s case, could be considered a measure that was objective and proportionate to the aim pursued (of protecting fair competition for female athletes”.
It said her complaints of discrimination as a result of World Athletics’ regulations were “substantiated and credible”.
The judgment does not bring into question DSD regulations, nor will it allow Semenya to compete over 800m, but Semenya believes it is a significant step in her continuing legal fight.
“The European Court of Human Rights ruled (on Tuesday morning) that I was discriminated against, that my human rights were violated and that there are ‘serious questions’ about the validity of the rules set out by World Athletics,” Semenya said on Wednesday in a statement via her legal team in South Africa.
“I am elated at the outcome of the ruling. It has been a long time coming. I have and will always stand up for discrimination of any kind in sports.
“I have suffered a lot at the hands of the powers that be and have been treated poorly.
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“The hard work that I have put in to being the athlete I am, has been questioned, my rights violated, my career impacted. All of it so damaging – mentally, emotionally, physically and financially.”
Semenya added: “Justice has spoken, but this is only the beginning.
“My case at the European Court of Human Rights was against the ruling handed down by the government of Switzerland, and not World Athletics itself, but this decision will still be significant for all sportspersons in throwing doubt on the future of all similar rules.
“My hope is that Word Athletics, and indeed all sporting bodies, reflect on the statements made by the European Court of Human Rights and ensure that they respect the dignity and human rights of the athletes they deal with.”
The seven ECHR judges found by a majority of four to three that Semenya’s rights under article 14 of the European Convention on Human Rights, which concerns discrimination, had been violated by Switzerland.
The Swiss state was also found to have violated article 13 in not providing Semenya effective remedy against discrimination.
World Athletics released a statement on Tuesday saying its regulations were “a necessary, reasonable and proportionate means of protecting fair competition in the female category”.
The governing body said it would encourage the Swiss state to refer the matter to the Grand Chamber of the ECHR for a final judgment.